Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Davol/C.R. Bard Hernia Mesh Multi-Case Management

Superior Court of Rhode Island, Providence

January 3, 2019

IN RE: DAVOL/C.R. BARD HERNIA MESH MULTI-CASE MANAGEMENT
v.
DAVOL INC. and C. R. BARD INC., Defendants. MICHAEL DUANE NOURSE and CLARA GAIL NOURSE, Plaintiffs,

          For Plaintiff: Jonathan D. Orent, Esq.

          Mark Nugent, Esq. For Defendant Thomas M. Robinson, Esq.

          DECISION

          GIBNEY, P.J. JUSTICE/MAGISTRATE.

         Defendants Davol Inc. and C. R. Bard Inc. (collectively Defendants) move to dismiss the Complaint of Michael Duane Nourse (Michael Nourse or Plaintiff) and Clara Gail Nourse (Consortium Plaintiff) (collectively Plaintiffs) arguing that Plaintiffs' Complaint is barred by Ohio's applicable statute of repose. Plaintiffs object arguing the Complaint is governed by Rhode Island law, under which the action is timely. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.

         I

         Facts and Travel

         On July 28, 2017, Plaintiffs filed a Complaint in Rhode Island alleging Michael Nourse was severely and permanently injured by a 3DMax Mesh (3DMax), a medical device designed, manufactured, and distributed by Defendants. Plaintiff was surgically implanted with the 3DMax on September 15, 2005, during a medical procedure to repair a bilateral inguinal hernia. The 3DMax was explanted on March 30, 2016, resulting in physical and mental injuries to the Plaintiff. Plaintiffs are residents of Ohio, Davol Inc. is a Rhode Island corporation, and C. R. Bard Inc. is incorporated in the State of New Jersey.

         On August 17, 2017, Defendants moved to dismiss the Complaint, arguing Plaintiffs' claims are barred by Ohio's applicable statute of repose. Ohio R.C. § 2305.10(C)(1). Specifically, § 2305.10(C)(1) bars product liability claims "against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser." Defendants argue that under Rhode Island's choice of law principles, Ohio law governs the Complaint as Michael Nourse's surgeries took place in Ohio and Plaintiffs are Ohio residents. Plaintiffs filed the Complaint more than ten years after Michael Nourse's 3DMax implant surgery (the date at which Defendants argue the product was "delivered" to Plaintiff). Therefore, Defendants argue Plaintiffs' claims are barred by the statute of repose.

         Plaintiffs object, arguing their claims are timely. Citing this Court's previous application of Rhode Island law to factual circumstances similar to the within Complaint, [1] Plaintiffs argue Rhode Island is the proper choice of law and that Ohio's statute of repose is, therefore, inapplicable. Plaintiffs further argue that even if this Court applied Ohio law, their claims survive under two exceptions to the statute of repose: one for actions involving fraud, and the other for actions alleging product liability involving medical devices. Ohio R.C. §§ 2305.10(C)(2) and 2305.10(C)(7)(a).

         II Standard of Review

         It is well-settled that the sole function of a motion to dismiss is to test the sufficiency of the complaint. Ryan v. State, Dep't of Transp., 420 A.2d 841, 842 (R.I. 1980); Dutson v. Nationwide Mut. Ins. Co., 119 R.I. 801, 803-04, 383 A.2d 597, 599 (1978). '"When ruling on a Rule 12(b)(6) motion, the trial justice must look no further than the complaint, assume that all allegations in the complaint are true, and resolve any doubts in a plaintiff's favor."' Estate of Sherman v. Almeida, 747 A.2d 470, 473 (R.I. 2000) (quoting R.I. Affiliate, Am. Civ. Liberties Union, Inc. v. Bernasconi, 557 A.2d 1232 (R.I. 1989)). A motion to dismiss "may not be granted unless it 'appears beyond a reasonable doubt that a plaintiff would not be entitled to any relief under any conceivable set of facts which might be proven in support of his claims.'" City of Warwick v. Aptt, 497 A.2d 721, 723 (R.I. 1985) (quoting Ryan, 420 A.2d at 843).

         III Analysis

         Plaintiffs and Defendants disagree as to whether Rhode Island or Ohio is the proper choice of law. If Ohio law applies, this Court must determine whether the ten-year statute of repose bars Plaintiffs' Complaint. Sec. 2305.10(C)(1). If Rhode Island law is applicable, this Court must deny Defendant's motion to dismiss as the comparable statute of repose enacted by the Rhode Island legislature has been found unconstitutional by the Supreme Court. See Kennedy v. Cumberland Eng'g Co., Inc., 471 A.2d 195, 201 (R.I. 1984) (holding that G.L. 1956 § 9-1-13(b), which sets forth a statute of repose that bars products liability actions brought more than ten years from the date of purchase of the product, is inconsistent with art. I, sec. 5 of the Rhode Island Constitution).

         A ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.